Senator Patrick Leahy (D-Vermont) filed this amicus curiae brief in U.S. v. Councilman, pending before an en banc panel of the First Circuit U.S. Court of Appeals. According to the press release issued by Leahy's office, filing an amicus brief is an uncommon move for active members of the Senate.

Relevant facts: Defendant owned a book company that extended its corporate email service to other book dealers as a subscription. Defendant then directed its "employees to write computer code to intercept and copy all incoming communications from Amazon.com to subscriber dealers." These intercepted emails were routinely read by defendant in order to gain a commercial advantage.

This is the second time the Court will hear this email case, which has large privacy implications. In a now-vacated June 2004 opinion, it denied the Government's appeal of the dismissal of charges against defendant for violation of the Wiretap Act (18 U.S.C. section 2510-2522) because there was no "intercept" of a communication within the meaning of the Act.

One of the main issues on rehearing is "Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?" According to Leahy's brief, the case should not be prosecuted under the SCA, because it contains a lesser standard for electronic communication interception than the Electronic Communications Privacy Act of 1986 (ECPA), a law that Leahy helped pass which amended the Wiretap Act.

According to the EPCA's legislative history, the law was enacted to broadly protect electronic communications (originally telephone conversations) from unwarranted government intrusion. Unfotrunately, the ECPA was enacted before the advent of email, and in its current form, the law does not protect the many stages of temporary storage and relay that most email encounters during a routine transmission. If the EPCA's Title III protection against intrusion is not construed broadly to cover email (which the Legislature presumably intended), email privacy would be negatively impacted, as law enforcement and other parties could indiscriminately snoop on electronic mail messages, provided they intercept the transmissions at points outside of Title III's protection.

That's the basic argument, anyway. If you're interested and live close to Boston, oral argument is scheduled for 3:00 p.m. on December 8, 2004 in the en banc courtroom in the John Joseph Moakley United States Courthouse. Don't bring your camera phone.